The matter before the Court
is respondent's Motion to Dismiss the petition for failure to state a
claim upon which relief can be granted. The single issue presented by
the petition and the motion is whether the statutory liability imposed
upon the employer of an uninsured contractor, section 39-71-405(1), MCA,
applies to the "employer of the employer" where the immediate employer
is also uninsured.

Facts

The relevant facts alleged
by the petitioner are as follows:

1. That on or about November
17, 1993, Petitioner suffered an industrial injury arising out of and
in the course of employment as a Pilot Car Driver with Don Ellis. The
injury occurred when a tractor-trailer pulled forward and crushed the
Petitioner's right thigh and buttock. The Petitioner had been lying
under the truck, near the tires while screwing a drain plug onto the
mobile home. The accident occurred in Granite County, Montana.

2. Don Ellis was an uninsured
independent sub-contractor hired by Transit Homes of America, Inc. Transit
Homes of America, Inc. was an uninsured independent contractor hired
by Rangitsch Brothers Mobile Homes. At the time of the injury, Rangitsch
Brothers was enrolled under Compensation Plan III of the Workers' Compensation
Act and its insurer is the State Compensation Insurance Fund.

3. A dispute exists between
the parties. The Petitioner believes she is entitled to coverage under
the policy owned by Rangitsch Brothers Mobile Homes pursuant to §39-71-405,
MCA (1993). The State Fund claims that §39-71-405 does not extend coverage
to the Petitioner because she works for a sub-contractor rather than
a contractor who contracted directly with Rangitsch Brothers.

Discussion

The rules of the Workers'
Compensation Court expressly contemplate motions to dismiss. Rule 24.5.316(1)
provides in relevant part: "(1) Unless a different time is specified in
these rules, the time for filing any motion to amend a pleading, to
dismiss . . . shall be fixed by the court in a scheduling or
other order." The rule, however, does not provide any further guidance
concerning motions to dismiss. Therefore, as it has done in other cases,
this Court will look to the Montana Rules of Civil Procedure for guidance
when considering such motions. See Murer v. State Fund, 257
Mont. 434, 436, 849 P.2d 1036 (1993).

Rule 12(b)(6) Mont.R.Civ.P.
provides that a defense based on the failure of a complaint "to state
a claim upon which relief can be granted" may be raised by a motion to
dismiss. For purposes of such a motion, all well pleaded facts are deemed
admitted, and the complaint should not be dismissed "unless it appears
beyond doubt that the plaintiff can prove no set of facts in support of
his or her claim which would entitle him or her to relief." Farris
v. Hutchinson, 254 Mont. 334, 336, 838 P.2d 374 (1992).

In this case the factual predicate
is straightforward. Ms. Glaude (claimant) was employed by Don Ellis (Ellis)
and was injured in the course and scope of her employment. Ellis in turn
had been hired by Transit Homes of America, (Transit) which in turn had
been hired by Rangitsch Brothers Homes of America, Inc. (Rangitsch). Both
Transit and Ellis were independent contractors. Ellis and Transit did
not have workers' compensation coverage, Rangitsch did. Diagrammatically,
the relationship was as follows:

Rangitsch Brothers

(insured)

|

Transit Homes

(uninsured)

|

Don Ellis

(uninsured)

|

Susie Glaude

(injured employee)

According to the complaint
Transit and Ellis were both independent contractors.

The sole issue presented by
the motion to dismiss is whether Rangitsch and its insurer, the State
Fund, are liable for claimant's injuries. Resolution of the issue requires
the Court to interpret section 39-71-405(1), MCA, which provides:

Liability of employer
who contracts work out. (1) An employer who contracts
with an independent contractor to have work performed of a kind which
is a regular or a recurrent part of the work of the trade, business,
occupation, or profession of such employer is liable for the payment
of benefits under this chapter to the employees of the contractor if
the contractor has not properly complied with the coverage requirements
of the Worker's Compensation Act. Any insurer who becomes liable for
payment of benefits may recover the amount of benefits paid and to be
paid and necessary expenses from the contractor primarily liable therein.

Claimant interprets the section
as imposing liability upon the first insured contractor in a linear hierarchy
of multiple subcontractors. The State Fund counters that on-its-face the
section limits liability to the entity or person which directly hired
the contractor by whom the injured worker was employed.

Claimant cites State
Compensation Ins. Fund v. Castle Mountain Corp, 227
Mont. 236 , 739 P.2d 461 (1987) and Webb v. Montana Masonry
Construction Co., 233 Mont. 198, 761 P.2d 343 (1988)
as supporting her position. Neither case is on point.
Webb held that a contractor who is liable for worker's compensation
benefits solely on account of a subcontractor's failure to carry workers'
compensation insurance coverage is not immune from liability in negligence
for injuries suffered by the subcontractor's employee. Castle
Mountain held that a contractor is not liable for injuries
suffered by an employee of an insured subcontractor whether or not the
subcontractor is deemed an independent contractor or employee. The case
involved the application of a different subsection, section 39-71-405(2),
MCA, which provides that the employer of a contractor "other than an independent
contractor" is liable for injuries suffered by the contractor's employees.

This Court has not found any
other Montana Supreme Court decision which concerns the precise issue
raised in this case. In Castle Mountain the
Supreme Court did identify the general purpose of section 39-71-405, MCA,
as the protection of employees of irresponsible and uninsured subcontractors.
The Court quoted with approval the following statement taken from 1C
Larson, Workmen's Compensation Law, § 49.11:

"The purpose of this ['contractor-under'
statutes like Section 39-71-405, MCA] legislation was to protect employees
of irresponsible and uninsured subcontractors by imposing ultimate liability
on the presumably responsible principal contractor, who has it within
his power, in choosing subcontractors, to pass upon their responsibility
and insist upon appropriate compensation protection for their workers.
This being the rationale of the rule, in the increasingly common
situation displaying a hierarchy of principal contractors upon subcontractors
upon sub-subcontractors, if an employee of the lowest subcontractor
on the totem pole is injured, there is no practical reason for reaching
up the hierarchy any further than the first insured contractor."
[Emphasis added.]

277 Mont. at 240. The quoted
purpose suggests that an injured employee should be permitted to climb
the "totem pole" of subcontractors and contractors until he or she reaches
the first insured entity. However, neither Castle Mountain
nor Larson specifically discuss the matter, and the Larson section is
cited only as supporting "the general purpose of Montana's workers' compensation
laws." Id.

Lacking specific precedent,
the section must be interpreted utilizing general principles of statutory
interpretation. The beacon for all statutory interpretation is legislative
intent. "Our function is to effectuate the intent of the legislature."
Minervino v. University of Montana, 258
Mont. 493, 496, 853 P.2d 1242 (1993). That function, however, is
qualified by the rule that legislative intent is ordinarily gleaned from
the plain meaning of the statute. Holly Sugar v. Department
of Revenue, 252 Mont. 407, 412, 830 P.2d 76 (1992).
Thus, the Court must first look to the face of the statute, and if
the words are plain, the Court can go no further. State ex
rel. Neuhausen v. Nachtsheim, 253 Mont. 296, 299, 833
P.2d 201 (1991). "Where the language of a statute is plain, unambiguous,
direct, and certain, the statute speaks for itself." Blake
v. State, 226 Mont. 193, 198, 735 P.2d 262 (1987)

Heeding the foregoing rules,
I read section 39-71-405(1), MCA, as imposing statutory liability upon
the entity which hired the uninsured contractor, and not upon any entity
which is higher up in a linear chain of multiple contractors and subcontractors.
Taking out the language that is unrelated to the present controversy,
section 39-71-405(1), states: "An employer who contracts with an independent
contractor . . . is liable for the payment of benefits under this chapter
to the employees of the contractor if
the contractor has not properly complied with the coverage
requirements of the Worker's Compensation Act." (Emphasis added.) As written,
this language plainly refers to the independent contractor
with whom the employer contracts, and to the employees
of that independent contractor.(1) Moreover,
the imposition of liability on the employer is not conditioned upon the
employer having workers' compensation insurance. Thus, the section is
fully implemented by imposing liability on the direct employer whether
or not the employer is uninsured.

I recognize that the general
purpose of section 39-71-405(1) would be better served by interpreting
the section in a manner which would impose liability on the first insured
contractor and which would thereby assure that a solvent insurer is liable
for benefits. Courts, however, are specifically precluded from inserting
terms or conditions which the legislature has omitted. "In the construction
of a statute, the office of the judge is simply to ascertain and declare
what is in terms or in substance contained therein, not to insert what
has been omitted or to omit what has been inserted." § 1-2-101, MCA;
accord Russette v. Chippewa Cree Housing Authority,
51 St.Rptr. 414, 415 (Mont. 1994); State v. Crane, 240
Mont. 235, 238, 784 P.2d 901 (1989).

Rangitsch Brothers and its
insurer are not liable for claimant's claim. The motion to dismiss is
well taken and the petition is dismissed.

DATED in Helena, Montana,
this 20th day of September, 1994.

(SEAL)

/S/ Mike
McCarter
JUDGE

c: Mr. Steve M. Fletcher
Mr. Charles G. Adams

1. In Reeverts
v. Sears, Roebuck and Co., Slip Opinion at 12 (September
16, 1994), the Supreme Court similarly relied on the use of the word
"the" in determining that a statutory reference to the injury is to a
"single injury."

It [sic] its original form,
this statute laid out a progression for payment of benefits which could
only refer to different types of benefits from the same injury. The statute
refers to "the accident" and "the injury" and sets forth a sequence which
can only logically apply to a single injury, rather than separate and
distinct injuries.